Robbins: The ABCs of citizen’s arrest

Father and son, Gregory and Travis McMichael, have been arrested and charged with Arbery’s murder. The killing was captured on video. It is clear as day.

The defense?

For starters, the defendants claim that they were making a citizen’s arrest. When Arbery “attacked” Travis McMichael, who had a gun pointed at Arbery, it was, the McMichaels claim, a simple case of self-defense.

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I’ll leave the second point for another column on another day. Here, though, let’s consider whether the instigating factor — the putative citizen’s arrest — might, could, or may hold water.

First, what led us here? Glynn County, Georgia police report that there had been several break-ins in the Satilla Shores neighborhood in which the McMichaels live. They told police that they believed that Arbery might have committed the burglaries. And so, they determined to arrest him.

They pursued him in their truck armed with a shotgun and a .357 pistol as the unarmed black man jogged through the neighborhood. It all happened quickly. The McMichaels tried to stop Arbery, he lunged at the gun that was pointed at him and Travis McMichael pulled the trigger, hitting Arbery at close range.

In addition to the murder charges, the McMichaels, who are white, may be charged with hate crimes.

What then constitutes a citizen’s arrest?

In certain situations, private individuals have the authority to make an arrest without a warrant. These types of warrantless arrests are known as citizen’s arrests and occur when ordinary people detain criminals themselves.

While arrests by private citizens are subject to fewer constitutional requirements than an arrest by law enforcement officers, there are still rules that apply. Failure to abide by those rules may result in civil and criminal liability for the arresting individual. One need go no further than the Arbery-McMichael case to see that.

What, then are the rules?

Speaking generally, a person can arrest another who they reasonably suspect of committing a felony, even if the felony did not occur in their presence. So long as a felony was actually committed and the individual making the arrest knew of the crime and had a reasonable suspicion about the identity of the perpetrator, it will justify the arrest. Note a couple of quick things here: first, the crime must have been actually committed and, second, the belief that the person arrested is the one who committed it must be “reasonable.”

Under Georgia law, however, in order for a citizen’s arrest to be warranted, the arresting party must have actually witnessed the crime. The McMichaels have made no such claim.

Except in certain limited circumstances, people cannot make citizen’s arrests for misdemeanors. When they can, however, individuals can only make arrests when they’ve personally witnessed the criminal behavior and the breach has just occurred or there’s a strong likelihood that, unless restrained, the breach will continue.

Citizen’s arrests are not burdened with the same constitutional requirements that attach to arrests by law enforcement. If, however, a person acts on the request of law enforcement, any arrest they carry out must meet the same constitutional standards as an arrest by the law enforcement officers themselves.

Despite the fact that citizen’s arrests don’t carry the same constitutional requirements as a typical arrest, individuals must only use that amount of force which is reasonable and necessary to make the arrest. Just what exactly constitutes reasonable and necessary force depends on the precise circumstances of each case. If it comes before a jury, the jury will examine the facts and determine if the force was reasonable or excessive.

Some states prohibit the use of deadly force except in circumstances where the person making the arrest or someone else is faced with the threat of serious bodily injury or immediate use of deadly physical force. In these situations, the person making the arrest may use deadly force but only to prevent harm to themselves or others. Georgia is among such states.

Other states allow a private individual making an arrest to use deadly force to stop a fleeing arrestee as long as the person making the arrest used reasonable methods in order to make the arrest. Some states go even further and require that the person using deadly force first attempted to restrain the subject of the arrest. Others require pursuit and an explicitly stated intent to arrest before the use of deadly force.

Besides the question of whether or not the McMichaels’ self-defense defense would pass muster, one must first ask whether the attempted arrest itself was legal. On at least three scores, the answer is almost certainly not. First, the McMichaels apparently did not witness the commission of a crime. Second, the quantum of force applied was almost certainly excessive. And third, one must question whether it was reasonable for the McMichaels to suspect Ahmaud Arbery at all.

The tragedy, of course, is that an innocent young man is dead, the McMichaels face their own travail, a community is once more torn apart, and the tenuous bridge between the races is once more set aflame. While only time and the justice system will tell how this all comes out, the one sure thing is that Ahmuad Arbery will never be returned to this family. And that should be a cautionary tale. Except in the most extreme circumstances, one should always leave law enforcement in the hands of those who understand its boundaries and who are constitutionally obliged to operate within its limits.

Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, robbins@slblaw.com.

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